Analysis
An 85-year-old woman (KC) executed two lasting powers of attorney (LPAs), one for the management of her property and affairs, and the other for welfare decision-making. She had been assessed, eight days prior to execution of the LPAs, by a specialist mental health practitioner as having capacity to execute the LPAs notwithstanding a diagnosis of Alzheimer’s Dementia. Both LPAs appointed all four of KC’s daughters as her attorneys. One daughter (LCR) declined to execute the LPAs, maintaining at the time that KC lacked the requisite capacity to grant the LPAs.
LCR issued an application objecting to the registration of the LPAs. Subsequently she conceded that there was insufficient evidence to rebut the presumption of capacity at the date that the LPAs were executed by KC. The Court of Protection made final declarations pursuant to s15 of the Mental Capacity Act 2005 that KC lacked capacity to: (a) conduct the proceedings; (b) make decisions as to where she should live; (c) make decisions as to her care; (d) make decisions about her conduct with others; and (e) make a decision to revoke the LPAs.
LCR’s position was that it was not in KC’s best interests for the LPAs to be registered, on the grounds that she and her sisters were unable to agree on anything and that registration would be detrimental to KC. KC’s other daughters (the first to third respondents) acknowledged the difficulties of working with LCR, but wished that both LPAs should be registered. KC’s ascertainable wishes and feelings were that all four of her daughters should have decision-making authority in respect of her property and affairs and health and welfare.
Held:
The issue before the court was whether the LPAs executed by KC should be registered. The options available to the court were to order registration of the instruments as executed, on the basis that KC had the capacity to execute them at the time; or to direct that the LPAs should not be registered, with the result that no powers of attorney would be created. There was no power in the court to appoint all four daughters as attorney donees (if it was felt that this was in KC’s best interests).
By s22(4)(a) of the Mental Health Act 2005 the court may direct that an instrument purporting to create the LPA is not to be registered or, if the patient (P) lacks capacity to create the LPA or to revoke the instrument or the LPA. Section 22(3)(b) provides that s22(4) applies if the court is satisfied that the donee (or, if more than one, any of them) of an LPA proposes to behave in a way that would contravene their authority or would not be in P’s best interests. Section 22(4) of the Mental Health Act 2005, therefore, enables the court, if it is satisfied that the donee (or donees) propose to act in a way which is not in the best interests of P, to refuse to allow the registration of the instrument, notwithstanding the intention of the donor at the date the instrument was executed. The language of s22(4) makes it abundantly clear that if the court is satisfied that the donee(s) propose to act in a way that is not in P’s best interests, the court must decide whether to exercise its discretion to refuse to allow registration. In the absence of such registration, there is no valid LPA.
The three-limbed approach articulated by HHJ Marshall QC in Re J [2011] should be adopted in determining whether an attorney or proposed attorney is considered to be unsuitable. First, the court must identify the allegedly offending behaviour or prospective behaviour. Second, the court looks at all the circumstances and context to decide whether, taking everything into account, it really does amount to behaviour which is not in P’s best interests, or can fairly be characterised as such. Finally, the court must decide whether, taking everything into account, including the fact that it is behaviour in some other capacity, there is good reason to take the very serious step of revoking the LPA.
In a case where the alleged unsuitability is based on the future behaviour of a donee or donees, the court is required to undertake a proper analysis of the available evidence, and, applying that analysis, to establish the likely future behaviour of the donee(s) and whether this was likely to be in P’s best interests. There was no higher standard of proof than that of the balance of probabilities to show why such behaviour is not in the donor’s best interests.
There were no concerns about current or prospective financial or emotional abuse of KC. The nub of the case lay in whether, if the court ordered registration of the instruments (thereby creating valid LPAs with the first to third respondents), the first to third respondents would be able on a day-to-day basis to apply the factors set out in s4 of the Mental Capacity Act 2005 when determining what is in the best interests of KC. Those factors included taking into account KC’s wishes (which were that all four of her daughters be involved in making decisions about her future care and finances) and (if it is practical and appropriate to consult them) the views of anyone engaged in caring for KC or interested in her welfare.
There would need to be a degree of cooperation, engagement and, where possible, agreement between all four of KC’s daughters. It was clear that this would not happen. There was a significant risk that, if the instruments were registered, ongoing disagreement would result in matters being brought back to the court for determination. There was abundant evidence that, for whatever reason, LCR on the one hand and the first to third respondents on the other, had a difficult, fractured and acrimonious relationship based on mistrust, conflict and what at times had appeared to the court to be dislike. At a time when KCR needed her daughters to all pull together the chasm between them had, if anything, deepened and widened. It was KC’s hope that her daughters would pull together and make decisions together. However, the evidence strongly indicated that, sadly, there was no prospect of that happening. There was clear evidence that the donees of the instruments would, if they were registered, behave in a way that was not in KC’s best interests.
The LPAs should not be registered given that KC had, when she was a capacitous donor, expressed the wish that all four of her daughters should have decision-making authority and her current wishes and feelings reflected that view. To appoint three of KC’s four daughters as attorneys would not be a proper exercise of the court’s powers (especially in the face of opposition from LCR to any joint appointment with her sisters). It would also directly contradict KC’s wishes and feelings and would serve to exclude LCR (who played a significant role in KC’s life) from decision-making. The appointment of three of the four daughters as attorneys would not heal the rift that existed between them and LCR. If anything, it would exacerbate and emphasise the difficult and fractious sibling relationship which could not be, and was not, in KC’s best interests. If the first to third respondents were appointed, they would not be able to act in KC’s best interests by working together with LCR and making decisions on a joint basis, despite all four daughters having KC’s best interests at heart.
Neither instrument should be registered, and a panel deputy should be appointed to manage KC’s property and affairs pursuant to s16(6) of the Mental Health Act 2005, applying the principles contained in s1 of the 2005 Act and the best interests principles contained in s4. Any decisions regarding KC’s property and affairs should be made by an independently appointed guardian (who in making any such decisions would be under a duty to consult with all four daughters prior to making any decision). No party sought the appointment of a deputy for KC’s personal welfare, and as matters currently stood, it would not be appropriate for such an appointment to be made
JUDGMENT HHJ SARAH RICHARDSON: Introduction [1] These proceedings concern KC (the Fourth Respondent), who is 85 years of age. KC has a diagnosis of Alzheimer’s Dementia and a consequent moderate degree of cognitive impairment. KC currently resides with her daughter, the Applicant in these proceedings (‘LCR’) and LCR’s husband and has done so since 24 …Continue reading "LCR v SC & ors [2021] WTLR 229"